Translation:Shulchan Aruch/Choshen Mishpat/67

Paragraph 1- On a biblical level, shmittah only applies at a time when yovel is practiced. Under rabbinical law, shmittah on money is practiced in the modern era in all places. ''This is the conclusion of the poskim. There are those, however, that say there is no shmittah in the modern era. It seems that these countries rely on this opinion in their custom not to practice shmittah at all in the modern era. This custom was also practiced in the time of the Rosh as is written in his responsa that he 'croaked liked a rooster' to nullify the custom but they did not heed his words. The achronim already wrote a rationale behind this custom not to practice shmittah as is explained in the words of the Maharik in Shoresh 92, Mahari Iserlin in Terumas Hadeshen Siman 304 and the Maharil and we cannot take issue with their words. With respect to the calculation of shmittah, a dispute has arisen. The primary view is that the year 5320 and 5327 was shmittah, which means the upcoming year 5334 will be shmittah. It should be his will that the Temple be rebuilt and we return to the counting of shmittah and yovel when the year 5335 arrives.''

Paragraph 2- Shmittah nullifies a loan, even if it’s a documented loan secured by property. Shmittah nullifies a loan with a mashkanta arrangement in a place where the practice is to remove the lender from the mashkanta at any time when the borrower brings the money. In a place where the borrower cannot remove the lender until the due date, shmittah would not nullify the loan. If there is no mashkanta but the borrower has specified a specific field for the loan, shmittah would not nullify the loan. There are those that say this is only in a place where one cannot remove the lender. Any situation where one cannot remove the lender, even if it is only for one day, is considered a place where one cannot remove the lender.

Paragraph 3- If one has an iska arrangement with another, shmittah would void the loan half of the iska.

Paragraph 4- If one partnered with another and they were involved with commerce and documents, and the documents were in the possession of one of the partners, shmittah would not void the documents because shmittah only voids loans.

Paragraph 5- If a cosigner paid back the lender and shmittah arrived before the borrower paid the cosigner, shmittah would void the debt.

Paragraph 6- Any matter that is voided by shmittah would also have its oath voided. Thus, a judge’s oath or something similar, in a situation where had the party confessed shmittah would void the debt, would be voided by shmittah. The guardian oath or partner oath or something similar, however, where had the party confessed shmittah would not void the debt because the item is a deposit and not a loan, would not be voided by shmittah. If one owes money to another that would be voided by shmittah and he swears that he will pay him, he would still be exempt from paying because he only swore to pay so long as he owes him money.

Paragraph 7- If one lent another and the borrower denied the loan and swore to the lender and shmittah arrived with the borrower still denying the loan, but once shmittah passed he confessed or witnesses came, shmittah would not void the debt. If, however, the borrower denied, swore and confessed after shmittah or witnesses came before the conclusion of shmittah, the debt would be voided.

Paragraph 8- If a plaintiff claimed a debt, the defendant denied it, the plaintiff brought witnesses and the court obligated the defendant and wrote its ruling, the debt is considered collected and shmittah would not void it.

Paragraph 9- If one lent another on the condition that shmittah does not void, shmittah would void the loan. If, however, he made a condition with him that shmittah should not void this loan, the condition would be valid, even if it was made during shmittah because he is obligating himself to pay money that the Torah did not require he pay. ''Similarly, if he wrote the document in the language of a deposit, shmittah would not void the debt because they wrote it as a deposit so that shmittah would not void the debt. If the practice was to write this in documents and there was one document that did not have it, we do not say that we consider as if it were written that way even though we say that for other matters, such as above in Siman 42.''

Paragraph 10-If one lends another and sets the due date for 10 years’ time or more or less than 10 years, the shmittah that arrives during that time would not void the debt because right now “lo yigos” is inapplicable. Paragraph 11- If one hands his documents over to a court and directs them to collect his debt for him, shmittah would not void the debt.

Paragraph 12- If one lends another using collateral, the amount corresponding to the collateral would not be voided. There are those that say that even the amount above the value of the collateral would not be voided.

Paragraph 13- If a lender took collateral through the court, not at the time of the loan, the loan has the status of a loan on a collateral.

Paragraph 14- Shmittah does not void store credit. If they converted the debt into a loan, shmittah would void the debt. ''A conversion takes place from the moment he sets a deadline to pay back. There are those that say that it is considered converted to a loan as soon as he wrote the sum total of all the debts in his records.''

Paragraph 15- Wages of a worker are not voided by shmittah. If he converted the debt into a loan, shmittah would void the debt.

Paragraph 16- The fine in the case of rape, seduction and defamation would not be voided by shmittah. If he turned them into a loan, they would be voided. When does the conversion take place? From the time he initiates the court proceedings.

Paragraph 17- If one divorces his wife before shmittah, shmittah would not void her kesubah. If she admitted some was paid back or she converted it to a loan, shmittah would void the debt. ''One who comes via a gentile has the status of a gentile. Therefore, if one purchases a document that a gentile has on a Jew, shmittah would not void the loan. Similarly, if one is a co-signer for a Jewish borrower of gentile lender, he paid back the gentile, took the document from the gentile and now is claiming the debt from the Jewish borrower, shmittah would not void the debt. Without this, however, shmittah would cancel the debt even though he paid back the gentile for him.''

Paragraph 18- A pruzbul is not voided by shmittah. It can only be written in a prestigious court, which means three experts in law and the concept of pruzbul. They must know the topic of shmittah and must have their authority accepted by many people in the city. ''There are those that say that any court can write a pruzbul. It seems to me that one can be lenient in the modern era.''

Paragraph 19- This is the text of the pruzbul: “I am handing over to you, so and so, so and so and so and so the judges in such and such place, that every debt that I have I can collect at any time that I want.” The judges or witnesses sign below. He is also able to hand over his debts to the court orally.

Paragraph 20- Scholars that lent one another and gave over their words to their students and said, “I am handing over to you that any debt that I have I can collect at any time that I want,” do not have to write a pruzbul because they know that shmittah today is only rabbinical and that it can be set aside with mere words. ''There are those that say any person can say his words orally in front of a court and it would work and no pruzbul is required. It is immaterial whether the lender is in the city of the judges or not because he can say outside their presence “I am handing over my documents to such and such court in such and such city.”''

Paragraph 21- There are those that write that the concept of a pruzbul document is as follows: the lender goes to three witnesses- and some say it can even be two witnesses- and says “you shall be witnesses for me and see that I am handing over a pruzbul in front of three judges whom are so and so, so and so and so and so the judges in such and such place.” It is sufficient to have those witnesses sign. If the judges sign it is even better and no witnesses would be required.

Paragraph 22- We only write a purzbul on real property. Any amount of property would suffice, even if it was just a punctured flowerpot that was placed on pegs in the air and even if the place of the pegs did not belong to him. Even if the borrower did not have any real property, but a third party that was obligated to him or the cosigner did, we would write a pruzbul. Even if none of the foregoing had real property but the lender or someone that was obligated to the lender had property, they can acquire the property for the borrower on his behalf, even through a third party and even if not in the borrower’s presence. If, however, the borrower were in front of us and protested that he did not want to acquire the land of someone else, we would not acquire it for him against his will.

Paragraph 23- If someone lent the borrower a place for an oven or pots, we can write a pruzbul for him. The same would apply if it was rented to him.

Paragraph 24- If the borrower owned land that was a collateral in someone else’s possession, we can write a pruzbul for him.

Paragraph 25- We can write a pruzbul for a man on the basis of his wife’s property, a woman on the basis of her husband’s property and for orphans on the basis of the guardian’s property.

Paragraph 26- If five people borrowed from one lender, one pruzbul would suffice. If they borrowed in one document, we can write a purzbul on all of them, even in only of them had real property.

Paragraph 27- If five people lent to one borrower, each one would need a pruzbul.

Paragraph 28- Minor orphans that have their loan in another’s possession do not require a pruzbul. One who owes money to the charity collection would not have his debt voided.

Paragraph 29- We would make a claim on behalf adult orphans that perhaps their father had a pruzbul or made a condition that shmittah would not void the debt.

Paragraph 30- Shmittah does not void a monetary debt until its conclusion. Therefore, if one lent another during shmittah, he can collect the debt in court the entire year. Once the sun sets on the night of Rosh Hashana of the 8th year, the debt has been lost.

Paragraph 31- So long as the lender is able to collect the debt, we can write a pruzbul.

Paragraph 32- A predated pruzbul is valid, while a postdated one is invalid.

Paragraph 33- A person is believed to say he had a pruzbul and misplaced it. Moreover, we would assist him and say perhaps you had a pruzbul and misplaced it and if he responds affirmatively he would be believed. ''If the court did not assist him and he left the court and then came back and said he had a pruzbul and it was before the ruling was given, he would be believed. If, however, it was after the ruling was given, he would not be believed.''

Paragraph 34- Similarly, if the lender says we had a condition that shmittah would not void the loan or it was store credit or any other matter where shmittah would not void the loan, he is believed with a migu that he could have said he had a pruzbul and misplaced it.

Paragraph 35- If the plaintiff produced a pruzbul and the defendant claims that this loan was after the date of the pruzbul, the plaintiff is believed because had he said he had a pruzbul but misplaced it he would be believed, even though we do not know the date of the misplaced pruzbul.

Paragraph 36- If one pays back a loan in which shmittah has passed, the lender should say to him the debt has been voided and you are exempt. If the borrower says to him, nonetheless I want you to accept, the lender may accept it from him. The borrower should not say I am giving it to you as payment for my debt. Rather, he should the money is mine and I am giving it to you as a gift. If the borrower returned the money but did not say it, the lender can use his words to get the borrower to say it is mine and I am giving it as a gift. If the borrower does not say it, the lender cannot collect. Rather, the borrower will take his money and walk away.

Paragraph 37- If shmittah passed on a loan document without having a pruzbul written on it, we would take the document away from the lender and return it to the borrower.

Paragraph 38- If one sells a loan document to another and shmittah has passed, the buyer cannot go collect from the seller because the buyer was negligent in not creating a pruzbul. If shmittah had already passed at the time of the sale we would make a claim on behalf of the buyer that the seller had a pruzbul and misplaced it. If the seller admits that he did not have a pruzbul and the seller does not have any property, he would not be believed. If the seller has property, he would be believed and the borrower would be exempt and the seller would pay the buyer.